When one spouse dies, the surviving spouse can choose to make a portability election. This means that any unused federal gift or estate tax exemption can be transferred from the deceased spouse to the surviving spouse. This does not happen automatically, says the recent article “It’s So Important to Elect ‘Portability’ For Your Farm Estate” from Ag Web Farm Journal, but it is worth doing.
Your estate planning attorney will explain how you can take advantage of this opportunity, which must be done at the latest within two years of death. In most cases, no taxes are due, but you must file a form to obtain the exemption.
Before portability was an option, spouses each owned about the same amount of assets, or the amount of assets which would use up each other’s exemptions. For many farm and ranch families, the family’s property is titled one-half to each spouse. Now, however, because of portability, the assets can flow through to the surviving spouse.
At the first spouses’ death, the survivor files for the portability election and then has two exemptions to cover assets.
Here’s an example. A family owns assets jointly and their net worth is about $11 million. They have one son, who also farms. When the husband dies, the wife owns everything. However, she neglects to speak with the family’s estate planning lawyer. No estate taxes are due at this time because of the unlimited marital deduction between the two spouses.
When the wife dies in 2026, when the current federal estate tax exemption is set to drop back to $6 million, their son has to pay $2 million in federal estate taxes. There was $11 million in original assets, but only $6 million for the wife’s exemption. Had she filed for portability when the higher estate tax exemption enacted into law under President Trump, then the $5 million taxable estate would have been reduced by the husband’s exemption by $6 million. No federal estate tax would be due.
Farmers, ranchers and any family business owners need to take into consideration the potential estate taxes in future years. In addition, 17 states still have state estate taxes, and usually the amounts taxed are higher than the federal amount.
An experienced estate planning attorney can work with the family to evaluate their tax liability and see if portability will be sufficient, or if a bypass trust or other tools are needed to protect their legacy.
Reference: Ag Web Farm Journal (April 18, 2022) “It’s So Important to Elect ‘Portability’ For Your Farm Estate”